People v. Rosado

Decision Date13 February 1992
Citation583 N.Y.S.2d 130,153 Misc.2d 477
PartiesThe PEOPLE of the State of N.Y., v. Edwin ROSADO, Defendant.
CourtNew York Supreme Court

William Dowling, Bronxville, for defendant.

Assistant Dist. Atty., Tierney Carlos of Bronx County Dist. Attys. Office, for the People.

JOSEPH FISCH, J.S.C.

Defendant was indicted for the crimes of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree. At trial the People's case presented a typical "buy-and-bust" scenario wherein this defendant participated with another individual in the sale of heroin to an undercover police officer. 1 The sale took place in front of the apartment building in which defendant lived. The arrest of defendant and the other individual also took place at the same location within minutes of the transaction. After the People rested upon their direct case, defendant took the stand. He testified that on the date in question he was in his apartment with his ten-year old son who had returned home from school. He further testified that he left the apartment to buy soda for his son and, upon reaching the lobby, saw what he thought to be police activity directly in front of the building. He waited, smoked a cigarette in the lobby for some ten minutes to avoid the police activity, then proceeded to the sidewalk where he was arrested. The defense rested after defendant testified and the People rested immediately thereafter. A pre-summation conference concerning the charge was then held outside the presence of the jury, after which the case was adjourned until the following day. The next morning, immediately before summations began, the People moved to strike defendant's testimony as constituting an alibi for which no notice had been given, and, additionally, sought a missing witness charge with respect to defendant's son. The Court denied both applications for reasons set forth herein.

The Application to Strike Defendant's Testimony

Alibi is a shorthand description for a defense that a defendant was elsewhere when the alleged offense took place. The Court finds that defendant's testimony does constitute an alibi defense in that he asserted that at the time of the commission of the crime charged he was at some place or places other than the scene of the crime. (C.P.L. § 250.20) Defendant's narrative placed him inside the apartment building, indeed, inside his apartment at the time the sale of heroin took place. No notice of alibi had been given.

New York's Criminal Procedure Law Section 250.20 requires that the defense provide the People with a "Notice of Alibi" within eight days of timely demand. Such notice must state where the defendant claims to have been at the relevant time. Along with other information, the name of "every such" witness to be used in establishing the alibi must be set forth. (emphasis added) (Compare, e.g., Florida Rules of Criminal Procedure [3.200], providing that upon failure of notice alibi evidence may be excluded "except the testimony of the defendant himself". [See, White v. State, 356 So.2d 56, 57 (Fla., 1978) ] Similarly, Pennsylvania Rules of Criminal Procedure [305(C)(1)(d) ]. [See, Commonwealth v. Fernandez, 333 Pa.Super. 279, 482 A.2d 567 (Pa., 1984) ] The Criminal Procedure Law provides for exclusion of alibi testimony of a witness not so listed. The Court in its discretion may receive such testimony, but must, upon proper application, grant the People an adjournment not in excess of three days.

The constitutionality of "Notice of Alibi" statutes providing for reciprocal disclosure has been upheld by the United States Supreme Court. "Notice-of-alibi rules, now in use in a large and growing number of States, are based on the proposition that the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial. See, e.g., Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash.U.L.Q. 279; American Bar Association Project on Standards for Criminal Justice, Discovery and Procedure Before Trial 23-43 (Approved Draft 1970); Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149 (1960). The growth of such discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system." (Wardius v. Oregon, 412 U.S. 470, 473-474, 93 S.Ct. 2208, 2211, 37 L.Ed.2d 82 [1973] In Williams v. Florida [399 U.S. 78, 81-82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970), cited in Taylor v. Illinois, 484 U.S. 400, 412, n. 17, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) ], the Supreme Court stated: "Given the ease with which an alibi can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. Reflecting this interest, notice-of-alibi provisions, dating at least from 1927, are now in existence in a substantial number of States. The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as 'due process' is concerned, for the instant Florida rule, which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence".

In the instant case, New York's statutory "Notice of Alibi" rule conflicts with defendant's right to personally testify. This is a case of first impression under New York's current Criminal Procedure Law. 2 While the Court of Appeals addressed this issue in 1942 [People v. Rakiec, 289 N.Y. 306, 45 N.E.2d 812], a different statute was involved with language which does not appear in the Criminal Procedure Law. In Rakiec, the Court of Appeals resolved the conflict on statutory construction grounds and refused preclusion of a defendant's own testimony. In a unanimous opinion written by Judge Conway, that Court found that the 1935 passage of § 295-l of the Code of Criminal Procedure--predecessor of current C.P.L. § 250.20--did not supplant § 393 of that Code. Section 393, originally enacted in 1869 as ch. 678, in pertinent part provided, "The defendant in all cases may testify as a witness in his own behalf, ..." (emphasis added in Rakiec at 309, 45 N.E.2d 812) The Rakiec Court ruled, "It is a sound rule of construction that in the absence of express language, it will be presumed that the Legislature did not intend to defeat the main purpose and object of another legislative enactment relating to the same subject [citation omitted] nor to make a radical change in long-established rules. [citation omitted]"

The 1970 enactment of C.P.L. § 60.15 as successor to C.C.P. § 393 effected a noteworthy change. The new statute states, "A defendant may testify in his own behalf, ..." The legislature thus eliminated the significant phrase "in all cases" which the Court of Appeals had taken pains to emphasize in its holding in Rakiec, and, in doing so, called into question Rakiec's continued application. Even were Rakiec no longer applicable, however, this Court would reach the same result. This Court holds it constitutionally impermissible to enforce generally New York's "Notice of Alibi" statute against a defendant by precluding or striking a defendant's own testimony. (Walker v. Hood, 679 F.Supp. 372, 381 [SDNY, 1988], aff'd.854 F.2d 1315 [2d Circ., 1988] 3 [granting writ of habeas corpus where, based upon lack of notice, trial court in its charge instructed the jury to "disregard" defendant's own alibi testimony], citing Alicea v. Gagnon, 675 F.2d 913 [7th Circ.1982]; see, United States ex rel. Robinson v. McGinnis, 593 F.Supp. 175 [CD Illinois, 1984]; also, People v. Hampton, 696 P.2d 765 [Colo., 1985]; contra, State v. Burroughs, 117 Wis.2d 293, 344 N.W.2d 149 [1984].

It now is well settled that a defendant has the right to testify on his own behalf. Such right flows from the compulsory process clause of the 6th Amendment and the due process requirements of the 5th Amendment applied to the states through the 14th Amendment, and finds additional support in the 9th Amendment. This right applies not only to total preclusion, but also to restriction of the scope of non-cumulative, relevant testimony. "Not to be deprived of liberty without due process of law under the Fifth Amendment includes the right to a fair adversary process, a part of which is the right to be present and to take the witness stand in one's own defense. The right to testify on one's own behalf is also derived from the compulsory process clause of the Sixth Amendment. That Amendment, directed generally to the rights of the accused, includes an accused's right to call 'witnesses in his favor'. Logically included within the right to call any witness is the accused's right to testify himself should he possess evidence in favor of the defense. That this unmentioned right is a constitutional one is further fortified by the rule of construction contained in the Ninth Amendment ... The full scope of the specific guarantees is not limited by the text, but embraces their purpose to provide broad freedom from all 'arbitrary impositions and purposeless restraints'." (Walker v. Hood, supra, citing United States v. Bifield, 702 F.2d 342, 349 [2d Circ.], cert. den. 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 [1983]; Alicea v. Gagnon, supra ) "Where constitutional rights directly affecting the ascertainment of guilt are implicated, [a state evidentiary rule] may not be applied mechanistically to defeat the ends of justice." (Chambers v. Mississippi, 410 U.S. 284, at 302, 93 S.Ct. 1038, at 1049, 35 L.Ed.2d...

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4 cases
  • Noble v. Kelly
    • United States
    • U.S. District Court — Southern District of New York
    • February 28, 2000
    ...that Whalen would have, presumably, described. 24. At least one decision rendered after Noble's trial, People v. Rosado, 153 Misc.2d 477, 583 N.Y.S.2d 130 (N.Y.Sup.Ct.1992), reached the same conclusion as the trial court in this case, i.e., that testimony that a defendant was inside a build......
  • People v. Dawkins, 2
    • United States
    • New York Supreme Court — Appellate Division
    • December 31, 2001
    ...289 NY 306; People v. Peace, 256 A.D.2d 1014; People v. Cuevas, 67 A.D.2d 219, 224; People v. Duncan, 187 Misc.2d 205, 207-208; People v. Rosado, 153 Misc.2d 477; Walker v. Hood, 679 F Supp 372, 381, affd 854 F.2d 1315; see also, Alicea v. Gagnon, 675 F.2d 913). Therefore, the County Court ......
  • People v. Dawkins
    • United States
    • New York Supreme Court — Appellate Division
    • December 31, 2001
    ...Rakiec, 289 NY 306; People v Peace, 256 AD2d 1014; People v Cuevas, 67 AD2d 219, 224; People v Duncan, 187 Misc 2d 205, 207-208; People v Rosado, 153 Misc 2d 477; Walker v Hood, 679 F Supp 372, 381, affd 854 F2d 1315; see also, Alicea v Gagnon, 675 F2d 913). Therefore, the County Court comm......
  • People v. Duncan
    • United States
    • New York Supreme Court
    • February 20, 2001
    ...makes reference, explicitly or by implication, to a defendant personally" (People v Peace, 256 AD2d 1014, 1015; see also, People v Rosado, 153 Misc 2d 477). Given the clear statutory and fundamental constitutional rights of a criminal defendant to testify, the striking of such testimony for......

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